Supervising Surveillance

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license plate readersBody cams aren’t the only new toys to hit law enforcement in the past few years. Automatic License Plate Readers (ALPRs) have also given police departments a tool to track those they suspect of a crime. These devices are set up alongside roads to passively collect the license plate numbers of all cars that pass by.

Virginia State Police first began using the devices in 2006, building up a database of roughly 8 million license plate images across the state. Because the data was never dumped, law enforcement officers could see what a suspect was up to years before they became part of an investigation. Looking at the data over time, officers could discern a person’s normal routine or deviation from it.

The state police’s database was purged two years ago after then-Attorney General Ken Cuccinelli advised that storing information not directly tied to an ongoing criminal investigation would violate Virginia’s Government Data Collection and Dissemination Practices Act. Unless the data is part of an investigation, the images collected by state troopers are now automatically dumped every 24 hours.

droneBetween their usage against ISIS and Amazon’s plans to use them for delivery, drones have received a lot of press recently, but they’ll see limited use by local law enforcement. The General Assembly voted last session to outlaw weaponized drones by law enforcement in Virginia with few exceptions. The legislature has also concluded that police must seek a warrant before using drones in an investigation.

But the most intriguing device Virginia law enforcement can utilize is probably one you haven’t heard of. It’s called a Stingray, and it collects information from citizens by mimicking a cell phone tower. The device sends a signal to all cellphones within an area even if they aren’t being used. It can listen in on conversations or pinpoint the exact location of the person using it. Used outside of a political rally, it can obtain the cellphone numbers of all in attendance. It can also send texts and emails from a person’s phone.

Initially created for the military and spy agencies, Stingrays are increasingly being used by local law enforcement agencies, and because of the secrecy of the device, it’s hard to know which departments use them. At present, the police departments of Chesterfield County, Fairfax County and possibly Alexandria are known to have Stingrays.

This brings us to the Hampton Roads Telephone Analysis Sharing Network, operated by Hampton, Norfolk, Newport News, Suffolk and Chesapeake. Based out of a “telephone analysis room” in Hampton, the network collects its data either by subpoenaing telecom companies or from phones seized during an arrest.

cell phone dataThe information stored in this network is called metadata and can include anything sent in an undeleted text message, GPS location information and all records pertaining to a phone call. The content of a phone call itself is not stored as part of the program, but the time, date, phone number, call duration and location of the user could be included in this data.

In a video released by the Hampton Police Department, Sgt. Jason Price downplays the invasiveness of the network. Funded by asset forfeiture money, Price explains that the network is only used for more complicated cases—like those involving violence, drugs or gang activity—that cross jurisdictions.

While Price explains, “This tool really allows us an opportunity to look at information that there really is no other way to look at,” he also says, “It is just data,” and, “This isn’t Big Brother watching you.” Web browser history, photos and videos stored in a phone are not included, and Price says it’s just a more sophisticated version of how police once wrote phone numbers on index cards to determine connections between callers. Richards doesn’t agree with the comparison.

“I think the analogy between this program [and index cards] is a bit like saying … there’s really no meaningful difference between computers and typewriters,” Richards says. “To say that this is no different from what has happened in the past, the police either fundamentally misunderstand the technology that they’re using and the enormous ability that new technology has, or they’re being disingenuous, and neither should give the people of Coastal Virginia much solace.”

Richards says that with the HRTASN and other surveillance networks, law enforcement often downplay the importance of metadata.

“Metadata is tremendously important,” Richards notes, mentioning that the NSA surveillance program authorized in the Patriot Act was rejected for renewal last spring over the value of metadata. “If you replace the word ‘metadata’ with ‘everybody you have ever called, how long you called for and possibly location data associated with a mobile phone,' ‘just metadata’ could include everywhere we go, everyone we know and everyone we talk to.”

“It starts to paint a very detailed picture of people’s lives in ways in which it’s never been possible before, and this is fundamentally different from the way that this technology used to operate,” Richards says.

Responding via email, Price says the network is used daily by “one to two investigators and/or analysts from each of the five participating agencies and all seven of the task force personnel.” Only those on a “need-to-know” level are authorized to use the system. Information stored in the system unrelated to an investigation is purged every five years. For those suspected of a crime, a court order or search warrant has to be approved by a judge or magistrate to seize information from a phone, but phone records from a telecom provider only require a subpoena.

The legality of the program has been called into question by the ACLU of Virginia, saying it violates the same act as the long-term collection of license plate information did. When contacted for this story, a spokesman for Virginia Attorney General Mark Herring confirmed that the office had looked into the legality of the network but that no opinion had been issued.

magnifying glassAs surveillance continues to play a growing role in our daily lives, what, if anything, should be done?

Gastañaga advocates for citizens and elected officials to play a larger role in overseeing how these technologies are implemented and help create the policies that govern their usage.

“We think the police should be collecting information on people they have reason to believe have done something wrong, instead of collecting information about law-abiding citizens that they have no reason to,” Gastañaga says.

Last year, for instance, the ACLU of Virginia praised the town council of Ashland for voting against storing information gleaned from ALPRs.

“We don’t oppose the technology,” Gastañaga says. “We oppose the technology being used without the citizen-involved development of appropriate policies that let the citizen have some say in how they’re being policed.”

For Richards, the solution is for an outside body to monitor the actions of the watchers themselves.

“Ironically, the best remedy for the abuse of surveillance,” says Richards, “is more surveillance.”

Read the full story in the January 2016 issue of Coastal Virginia Magazine.

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